Sunday, July 22, 2012

Google's Patent Strategy - Some of Apple's Patented Inventions Are De facto Standards

John Paczkoski's Some Apple Inventions Are So Great They Ought To Be Shared explains Google's and Apple's respective patent strategies. I found Google's patent strategy interesting in view of the on-going discussions regarding remedies available for infringement of standard essential patents in the ITC.

As most readers know, Google paid $12.5 billion for Motorola Mobility obtaining many standard essential patents (SEP). Apple may be concerned that Google's strategy is to enforce the SEPs to get a cross-license to Apple's commercially successful non-SEP patents on the iPhone.

Apple and Google's GC's have now staked out positions on how their respective patents should be viewed before the Senate Judiciary Commitee.

Google's GC Kent Walker's letter to the Senate Judiciary Committee argues "proprietary non-standardized technologies that become ubiquitous due to their popularity with consumers should be considered de facto standards."

Apple's GC Bruce Sewell responded in a letter to the Senate Judiciary Committee: "That a proprietary technology becomes quite popular does not transform it into a ‘standard’ subject to the same legal constraints as true standards."

As Mr. Paczkoski states: "Standardized technologies facilitate interoperability among disparate devices by giving them the same core functionality. They create a platform for competition. Non-standardized technologies differentiate those devices, create competition and drive innovation in the marketplace. Subjecting non-standards-essential patents to the same rules as those governing standards-essential ones will hamper innovation and harm consumers."

In my view, if a U.S. patent is not encompassing an industry standard, commercial success should not subject the patent to FRAND and limit a patent owner's rights to an injunction. Otherwise, free riders will eliminate the incentive to spend resources to innovate.

Copyright © 2012 Robert Moll. All rights reserved.